The comments on “bad exams” have been fascinating and useful. As one commenter noted, many law professors know more about the “law” part of the job title than the “professor” part. In some cases, they learn from experience; in others, they simply repeat bad habits over the course of a career. So it’s very valuable to get some student (and professorial) insights into how things can go wrong with respect to an exam.
One commenter wrote in a way that so resembled my own concerns about the mix between teaching and examination that I’m not convinced he or she wasn’t one of my own students. Whether that commenter is one of mine or not, I think a response is worthwhile. The student suggested that if a professor is going to teach in a way that includes non-doctrinal ways of thinking about course material — political science, legal theory, history, etc. — then the exam should reflect this. In some ways, this echoes another comment that was made by some of the writers on that post: that some students, having been forced to learn various historical aspects of doctrine that are not longer “the test” as such, would like to be tested on that material directly (i.e., “assume it is 1935”) rather than simply being asked to apply current doctrine. I think the response is the same to both points. There are matters of degree; a teacher who only teaches the history of a legal area, or who only teaches the pure theory of a legal area, without teaching doctrine acts irresponsibly when he or she then tests only on doctrine. But many professors who incorporate theory, history, etc. into their courses don’t fit this mold. I know I didn’t. We teach both theory and history and doctrine; and one of the points we make throughout the semester is that these aspects of the course, in addition to being interesting and important in and of themselves, conduce to a better learning of and application of the doctrine itself. To take two examples: most con law teachers, myself included, don’t simply start out examination of the Commerce Clause with “the test” in Lopez, but go all the way back to Gibbons v. Ogden, and spend some time on the pre-New Deal and New Deal Commerce Clause cases. Students may wonder why we don’t just start with Lopez. But I think that would be like starting a beginner’s French class with complex verb forms rather than basic vocabulary. It is difficult to understand the newer cases without understanding what came before them; much of both the modern test and the controversy over applications of that test is in fact closely related to much that happened in those older cases, and a grounding in them makes it much easier to understand and apply the modern Commerce Clause. Indeed, lest we forget, in many areas the New Deal cases are still perfectly good law, so that it would be doubly foolish to neglect these cases entirely. Second, I refer a great deal to John Hart Ely and representation-reinforcement over the course of the semester. I don’t expect students to write about Ely on my final; but I think his big picture ideas can help students form a better understanding of what is going on across a wide range of current constitutional law doctrine, from the Garcia case to equal protection jurisprudence. In both cases, the point of the history and theory is not just that it is interesting, but that it contributes to the actual application of current doctrinal rules in a sensitive and knowledgeable fashion. It helps build a sense of vocabulary about the current doctrine, and also a certain amount of judgment and situation-sense about application. All this is especially important because, as the professors know full well, doctrine itself can change, in large and small ways. If we are to teach skills that will last beyond the exam itself, we must teach the methods that go into forming and applying doctrine, and the fundamental and competing ideas that form part of the doctrinal discussion in any non-elementary case. Students who are so informed will not only better understand current doctrine, but they’ll also better understand how that doctrine might change and what kinds of arguments will go into it. As I said, there are questions of degree; if I spent all my time on Ely and none on doctrine, that would be a mistake. But talking about theory and history, if done right, is not at odds with teaching doctrine; it’s part of teaching doctrine. And in that sense, it can be quite legitimate to test largely on doctrine rather than on the underlying theory or history that also formed part of the class discussion, with the understanding that those discussions will end up informing and feeding into the doctrinal analysis. We should certainly test on what we teach; but that does not necessarily mean we should test in the same way that we teach.
Posted by Paul Horwitz on May 7, 2009 at 09:56 AM
Comments
You nailed it, Paul.
Posted by: Vladimir | May 7, 2009 7:19:41 PM
I agree with Paul, with one caveat that may be implicit in the last paragraph of his post: I think it’s appropriate to be clear with students that an answer to a doctrinal question can (indeed, should) include the more theoretical material discussed in class. I can see a student answering a purely doctrinal question with a purely doctrinal analysis, on the theory that that’s what the professor wants. Of course Paul’s correct that a better doctrinal answer would refer to underlying themes. But I don’t think it’s spoon-feeding to let students know that a good doctrinal answer should refer to those underlying ideas.
Posted by: Bill Araiza | May 7, 2009 3:09:16 PM
Alas, I’m not one of your students. 🙂
I don’t disagree with anything you said, either. I should also point out that I happen to love history, and I’m a giant contextualist, so I would regret if my courses overlooked or swept aside the historical background.
I think you’re absolutely right that it’s a matter of degree. Plenty of professors I’ve had have struck a nice balance. On the other hand, I’ve had at least 1 class where the actual classroom sessions were focused entirely on hypotheticals and applying what we were presumed to have read, rather than discussing the background, reasoning, etc. of cases. That professor’s exam was exclusively hypos as well. I was ok with that, because we were on notice that that was how the class was going to be.
I’m not ok with professors being mysterious, or uncommunicative about what it is they expect from us. And many behave that way (if not a majority, a substantial minority). Professors always act exasperated when students want to know about exams, or about how the professor is going to test. And yes, there comes a point where students get ridiculous about it. But from our perspective, every professor is different and does expect different things. How well you do on an exam is in part a function of understanding what it is the professor wants from you. Example: Prof. A. wants you to think carefully through issues and make your own judgments about the rightness or wrongness of things and to be able to articulate your reasons; Prof. B. wants you to have knowledge of what the doctrine is and to be able to apply it and has no interest in what you think about it. How you approach A’s class will be very different from how you approach B’s class.
Given that most professors stick to the 1 exam per semester routine, there’s simply no way to figure out over the course of 14 or 15 weeks what the professor is doing with exams. I think for those professors who stick to that way of testing owe their students an explanation of what it is they’re evaluating on exams, whether it’s our ability to argue about whether some rule is right, or to analyze hypos, or whatever it is. Unfortunately, I find that the majority of professors do not articulate that very clearly, if at all, and many tend to get huffy if students ask.
Posted by: dmv | May 7, 2009 1:19:47 PM
There’s another aspect of the “teach the development” philosophy: It accepts that law is not static. Although the bar exam does its very best to imply otherwise, lawyers in practice over however many years they practice will be confronted with change in both the rules themselves and the context in which they must apply them. Even within a course that is seemingly as context-free as it gets, consider how a comprehensive civil procedure course would confront Fed. R. Civ. Pro. 11, even since the 1980s!
Posted by: C.E. Petit | May 7, 2009 12:35:51 PM
Very well said!
Posted by: Rick Garnett | May 7, 2009 11:38:50 AM